This suit was brought in the Supreme Court of the District of Columbia to set aside certain harbor lines in the harbor of Pittsburgh, Pennsylvania, so far as they encroached upon land owned by the complainant, and to restrain the Secretary of War from causing criminal proceedings to be instituted against the complainant because of the reclamation and occupation of its land outside the prescribed limits. The Court of Appeals of the District affirmed a decree sustaining a demurrer to the bill, and the complainant appeals.
The allegations of the bill, in substance, are as follows:
The complainant, a corporation of the Commonwealth of Pennsylvania, is the owner in fee of "Brunot's Island," formerly Chartier's or Hamilton's Island, in the Ohio River, in Allegheny County, Pennsylvania. In 1858, a statute was enacted in Pennsylvania providing for the appointment of commissioners to ascertain and mark the
Subsequent to the establishment, in 1865, of the State Commissioners' line, a considerable portion of the shore of the island, "on the so-called back channel, within the said high water mark," was washed away from time to time by heavy floods and freshets, so that a large part of the upland was slightly submerged, but not to an extent sufficient to permit of navigation. Some years ago, the United States Government, in order to increase the depth of water in the harbor of Pittsburgh, caused a dam to be constructed across the Ohio River a short distance below Brunot's Island, known as the Davis Island Dam. And
In 1895, the Secretary of War, claiming to act under the authority of § 12 of the act of Congress of September 19, 1890, and knowing that the shore of Brunot's Island had been washed away by floods and freshets, established a harbor line which ran across the complainant's land within the line of the State Commissioners. It is further alleged that although the submerged land was generally covered by water, "it was not ordinarily navigable water," and "has never constituted, nor does it now constitute a part of the public navigable waters of the United States;" that no authority was conferred by the act of Congress upon the Secretary of War to regulate or interfere with the use of the complainant's land by the establishment of harbor lines upon the same; and that even if the water over this land was in fact part of the public navigable waters of the United States, without being rendered thus navigable by the construction of the dam, still the Secretary of War had no right so to run the harbor line over the land in question as to deprive the complainant of its use and enjoyment. It was the right of the complainant, the bill avers, to repair the damage caused by floods and freshets and to reclaim the submerged portion by filling in or wharfing, "keeping at all times within the lines of the part that had been torn away by the violence of the waters."
In 1907, the Secretary of War, claiming authority under § 11 of the act of Congress of March 3, 1899, against the complainant's protest, changed the harbor line. The report of the United State engineer at Pittsburgh stated that the conditions of high and low water had not changed since 1895, but as along a part of the shore of the island,
The bill further shows that to facilitate the delivery of coal for the operation of its power house on the island, the complainant desired to reclaim a part of it which had been submerged by establishing a coal wharf on the back channel, where both the harbor line of 1895 and that of 1907 "ran some distance landward of the said State commissioners' high water line." According to the proposed plans, the wharf or pier was to extend over the complainant's land and to cross both of the harbor lines to the State commissioners' line. While these plans were being perfected, the Secretary of War, through his representative, the United States engineer officer at Pittsburgh, declared to the complainant that it had no right to build upon its land across either of the harbor lines, and he refused to permit the complainant to reclaim its land or to build its wharf thereon outside the harbor line of 1907. He threatened that if it undertook to do so, he would prevent it and cause the complainant and its employes "to be prosecuted and fined by the authorities of the Federal Government" for violations of the acts of Congress of September 19, 1890 (26 Stat. 426, c. 907), and March 3, 1899 (30 Stat. 1151, c. 425). It was further charged that if the Secretary of War had authority to fix the original harbor line of 1895, that his power was exhausted by what was then done, and that the harbor line of 1907 was wholly unauthorized.
In consequence of the severe penalties prescribed by the acts of Congress for the construction of buildings,
The provisions of the acts of Congress, referred to in the bill, are set forth in the margin.
"1. This proceeding is virtually a suit against the United States.
"2. This Court has no jurisdiction to restrain the enforcement of a penalty or prosecution for violation of law.
"3. This Court has no jurisdiction to restrain the defendant from instituting criminal proceedings against complainant.
"4. This Court has no jurisdiction to declare or define harbor lines or boundary lines of land outside the District of Columbia and in the State of Pennsylvania.
First. If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully
The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.
Second. The second and third grounds of demurrer, specially stated, raise the question as to the jurisdiction of the court to restrain the defendant from instituting criminal proceedings.
A court of equity, said this court in In re Sawyer, 124 U.S. 200, 210, "has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors. . . . To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, . . . is to invade
It is urged that the statute authorizing the Secretary of War to prevent encroachments upon navigable streams is a valid one, and that the decisions cited do not apply. The validity of the statute is not attacked, because of the assumption that it is not to be construed to contemplate or authorize the alleged deprivation of property. Where the officer is proceeding under an unconstitutional act, its invalidity suffices to show that he is without authority, and it is this absence of lawful power and his abuse of authority in imposing or enforcing in the name of the State unwarrantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree. Ex parte Young, 209 U.S. p. 159. And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the statute, is transcending its bounds, and thus unlawfully
By § 12 of the act of March 3, 1899 (30 Stat. 1151, c. 425), it was provided that every person and every corporation which should violate any provision of § 11, relating to the observance of harbor lines, or any rule or regulation made by the Secretary of War in pursuance of that section, should be guilty of a misdemeanor and punished by fine or imprisonment. By § 17 it was made the duty of district attorneys of the United States to prosecute all offenders whenever requested by the Secretary of War. If the complainant's rights, as against the defendant, were as claimed, it was entitled to adequate protection. And, in such case, the remedy might properly embrace the restraining of unfounded prosecutions.
Third. The fourth and fifth special grounds of demurrer assert that the Supreme Court of the District of Columbia had no jurisdiction to define boundaries in the State of Pennsylvania, or to remove a cloud upon title to land in that State.
In dealing with these objections, it is important to observe the precise nature of the suit. It was not to determine a controversy as between conflicting claimants under the local law. It was not to restrain trespass. Northern Indiana R.R. Co. v. Michigan Central R.R. Co., 15 How. 233; Ellenwood v. Marietta Chair Co., 158 U.S. 105. It was not brought to try the naked question of the title to the land. Massie v. Watts, 6 Cranch, 148, 158. While the complainant's title lay at the foundation of the suit, and it would be necessary for the complainant to prove it, if denied, still if its title to the land under water were established or admitted to be as alleged, the question would remain whether the defendant in imposing restrictions upon the use of the property was acting by virtue of authority validly conferred by a general act of
Fourth. Assuming that the court had jurisdiction, we are brought to a consideration of the equity of the bill.
It has been held that the establishment of a general system of harbor lines, for the protection of commerce and navigation, is not of itself an injury to property and cannot be restrained. Yesler v. Washington Harbor Line Commissioners, 146 U.S. 646, 656; Prosser v. Northern Pacific R.R. Co., 152 U.S. 59, 64, 65. But it has also been recognized that a different question arises when active measures are taken against an individual proprietor to maintain a location of limits in alleged violation of his private rights and thus to prevent him from enjoying what is asserted to be the lawful use of his property. Prosser v. Northern Pacific R.R. Co., supra.
The complainant starts with the lines as laid down, in 1865, by the State Commissioners. These lines are averred to be "exactly in accordance with the then existing actual ordinary high and low water marks." The argument is (1) that, independently of the effect of the statute of Pennsylvania, the washing away of the banks, and the submergence of a portion of the island, during the subsequent years worked no loss of title, but that it remained absolute, including the right of reclamation and improvement of the submerged land inside the former line of high water; and (2) that, by virtue of the statute, the
(1) It is the established rule that a riparian proprietor of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased he is not accountable for the gain, and if it is diminished he has no recourse for the loss. But where a stream suddenly and perceptibly abandons its old channel, the title is not affected and the boundary remains at the former line. Rex v. Yarborough, 3 B. & C. 91; S.C., 2 Bligh, N.S. 147; Gifford v. Yarborough, 5 Bing. 163; New Orleans v. United States, 10 Pet. 662, 717; Banks v. Ogden, 2 Wall. 57; County of St. Clair v. Lovingston, 23 Wall. 46, 67, 68; Jefferis v. East Omaha Land Co., 134 U.S. 178, 190-193; St. Louis v. Rutz, 138 U.S. 226, 245; Nebraska v. Iowa, 143 U.S. 359; Shively v. Bowlby, 152 U.S. 1, 35; Hale, De Jure Maris, Ch. 1, 4, 6, Hargrave's Law Tracts; Mulry v. Norton, 100 N.Y. 424. The doctrine that the owner takes the risk of the increase or diminution of his land by the action of the water applies as well to rivers that are strong and swift, to those that overflow their banks, and whether or not dykes and other defenses are necessary to keep the water within its proper limits. It is when the change in the stream is sudden, or violent, and visible, that the title remains the same. It is not enough that the change may be discerned by comparison at two distinct points of time. It must be perceptible when it takes place. "The test as to what is gradual and imperceptible in the sense of the rule is, that though the witnesses may see from time to time that progress has been made, they could not perceive it while the process was going on." County of St. Clair v. Lovingston, supra (p. 68).
We are confined to the allegations of the bill. We have
It is manifest that these allegations are inadequate to support the complainant's contention. The determining words are that the land was "washed away from time to time by heavy floods and freshets," and the reference is to what occurred in many years. This is far from a statement that at any particular time there was such a sudden, violent, and visible change as to justify a departure from the ordinary rule which governs accretion and diminution albeit the stream suffer wide fluctuations in volume, the current be swift, and the banks afford slight resistance to encroachment.
For example, the general principle of accretion, which has that of diminution as its correlative, applies to such rivers as the Mississippi and the Missouri, notwithstanding the extent and rapidity of the changes constantly effected. Jefferis v. East Omaha Land Co., supra; Jones v. Soulard, 24 How. 41; Saulet v. Shepherd, 4 Wall. 502;
The present case falls within the category first mentioned, and according to general principles of law the owner would bear the losses caused by the washings of the river.
The bill also alleges that "some years ago the United States Government, in the interest of navigation and in order to increase the depth of water in the harbor of Pittsburgh, caused a dam to be constructed across the Ohio River a short distance below said Brunot's Island known as the Davis Island Dam. The effect of this dam was to very decidedly increase the depth of the water in the channel back of Brunot's Island, and to cause the water of the river to flow higher upon the land of your orator, and to submerge same to a far greater extent and in fact to make said water which submerged your orator's land navigable at certain times, and for certain purposes, which was not navigable before the construction of said dam."
It will be observed that it is said that the United States caused the erection of the dam in the interest of navigation. The complainant purchased the island subsequently, in the year 1896. And we are not concerned here with the question whether there was any appropriation of land of the former owner by the United States and a cause of action arose to recover its value. Gibson v. United States, 166 U.S. 269; United States v. Lynah, 188 U.S. 445; Bedford v. United States, 192 U.S. 217; Manigault v. Springs, 199 U.S. 473; C., B. & Q. Ry. v. Drainage Commissioners, 200 U.S. 561, 583, 584. So far as the bill shows the dam was lawfully built, and the allegations with respect to it wholly fail to state any case entitling the complainant to relief by reason of its construction.
(2) The complainant, however, insists that the effect of the Pennsylvania statute was to fix the boundary of the island permanently at the State Commissioners' high-water
This statute (act of sixteenth April, 1858), provided that the Commissioners' lines approved by the court should "forever after be deemed, adjudged and taken firm and stable for the purposes aforesaid." The Supreme Court of Pennsylvania has held that the purpose of the act was to regulate the rights of the public in respect to navigation and to prevent private rights from being exercised to the prejudice of the public interest. Wainwright v. McCullough, 63 Pa. St. 66; Zug v. Commonwealth, 70 Pa. St. 138, 142; Poor v. McClure, 77 Pa. St. 214, 219; Allegheny City v. Moorehead, 80 Pa. St. 118, 139, 140. In Wainwright v. McCullough (1869), supra, that court, holding that the statute was not applicable to disputed boundaries between private owners, considered the navigable character of the rivers to which it related, the extent of riparian rights under the law of the State, and the meaning of the act in the light of the mischief which it was intended to correct. The court said (p. 73):
"In order to arrive at the legal effect of the lines established by the commissioners under that act, we must ascertain its true purpose; and to reach this, it becomes necessary to examine the navigable character of the rivers Allegheny, Monongahela and Ohio, and the rights of the riparian proprietors upon their banks. These rivers are among the largest in the state; larger than the Schuylkill and Lehigh, recognized as navigable in the early history of the province, and have been repeatedly held by name to be rivers naturally navigable, and therefore classed with the Delaware and Susquehanna: Carson v. Blazer, 2 Binney, 478; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 79, 80; Hunter v. Howard, 10 S. & R. 244. Many acts have been passed declaring tributaries of these rivers navigable. But an act perhaps most pertinent to this controversy is that of 8th April, 1785, 2 Sm. Laws, 317,
* * * * * * * *
"This being the navigable character of the stream, the rights of the riparian owners are settled by numerous decisions, a few of which may be referred to: Carson v. Blazer, supra; Shrunk v. Schuylkill Nav. Co., supra; Ball v. Slack, 2 Whart. 508; Zimmerman v. Union Canal Co., 1 W. & S. 346; Bailey v. Miltenberger, 7 Casey, 37; McKeen v. Delaware Div. Canal Co., 13 Wright, 424; Tinicum Fishing Co. v. Carter, 11 P.F. Smith, 21, opinion by Sharswood, J., decided last winter at Philadelphia. From these and other cases, it will appear that the absolute title of the riparian proprietor extends to high-water mark only, and that between ordinary high and ordinary low water-mark, his title to the soil is qualified, it being subject to the public rights of navigation over it, and of improvement of the stream as a highway. He cannot occupy to the prejudice of navigation or cause obstructions to be placed upon the shore between these lines, without express authority of the state.
"The case of Bailey v. Miltenberger, 7 Casey, 37, decided in 1856, doubtless had something to do in turning public attention to the shores of the streams surrounding the city of Pittsburg, which led to the passage of the Act of 1858, for the purpose of defining the low and high water-lines. It referred to the mistaken idea entertained by some proprietors of making ground for their mills, by depositing cinders on the shore between low and high water marks. `The Allegheny and many other navigable rivers' (says the opinion) `do not, at the time of low water, occupy over one-third of their bed; and it would be most disastrous to allow every owner to fill out his land to low water-mark.' This state of affairs, for these rivers had been seriously encroached upon at and opposite Pittsburg,
* * * * * * * *
"The effect of the lines as established is thus stated: `the lines so approved shall for ever after be deemed, adjudged and taken, firm and stable for the purposes aforesaid.' If we seek for the `aforesaid' purposes, the act discloses none but those relating to the public interest and that of the riparian owner. Then if we advert to the power of the state over navigable streams, as stated in the authorities cited, we discover that it is plenary over the subject of navigation and the improvement of these natural channels of commerce, while the ownership of the riparian proprietor is qualified between the lines of low and high water. The legislature may, therefore, with great propriety define the bounds of high and low water, by means of a suitable commission, for the purpose of regulating the public right, so as not to conflict with private interests, and to prevent private rights from being exercised
In Allegheny City v. Moorehead (1875), supra, the question was presented whether by the fixing of water lines under the act of 1858, title had been vested in the city of Allegheny or lot owners, so as to defeat the claim of the plaintiff Moorehead under a subsequent patent from the State. The court said (p. 139): "Nor can the operation of the Act of 1858 be extended by the act of the commissioners in running out the low-water line of the northern shore of the river to include a part of what was Killbuck island. It was not the purpose of the commissioners to transfer titles, but to mark the boundaries of riparian rights, so as to make them certain and permanent in their extent. So it was not the intention of the framers of the Act of 1858 to pass titles to lands, or to ascertain boundaries between individuals; but it was their purpose to regulate the right of navigation along the shores of these rivers by establishing high- and low-water lines, which would definitely ascertain and fix the extent to which the right could be exercised; and the extent to which the owners of the land could exercise their own rights under the law of the state."
It is contended for the complainant that the effect of the statute was to secure to riparian owners complete protection against any loss of their land, or of the right to build upon it, by reason of the gradual washing away of the banks of the river; that the State chose to resign to the riparian proprietors its right to such additions from the moving landward of the low-water mark, and required the owner at the same time to surrender in the interest of navigation his right to alluvion. In support, the complainant cites the opinion of the Court of Common Pleas No. 2 of Allegheny County in Briggs v. Pheil (1894), 42 Pittsburgh Legal Journal, p. 18, in which it is said with respect to the same statute: "At the passage of this act
The established doctrine is invoked that the title to the soil under navigable waters within their territorial limits, and the extent of riparian rights, are governed by the laws of the several States, subject to the authority of Congress under the Constitution of the United States. Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Weber v. Harbor Commissioners, 18 Wall. 57; Barney v. Keokuk, 94 U.S. 324, 338; Packer v. Bird, 137 U.S. 661, 669; St. Louis v. Rutz, 138 U.S. 226, 242; Hardin v. Jordan, 140 U.S. 371, 382, 402; Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 435, 452; Shively v. Bowlby, 152 U.S. 1, 40-47; Water Power Co. v. Water Commissioners, 168 U.S. 349, 365. Let it be assumed that the Pennsylvania statute in its regulation of rights, established the Commissioners' high-water line as the permanent boundary of the island and conferred upon the riparian owner, so far as it was within the competency of the State to confer it, the right to fill in and to erect structures to the limit of this line, regardless of subsequent changes in the actual high-water line caused by the washing away of the banks of the river. What, then, was the power of Congress with
When the Secretary of War, in 1895, fixed harbor lines he dealt with the stream as it then existed. Whatever right the owner of the island may have had under the state law to reclaim the submerged land within the former line of high water, had not been exercised. The bill, in alleging that the new harbor line ran across the complainant's land, must be taken to refer to the submerged land already described. This is the import of its allegations and is shown by the record of the War Department annexed to the bill. In establishing this line, the Secretary of War followed quite closely the actual line of high water as it existed in 1895, except in the back channel of Brunot's Island where it ran several hundred feet outside the then high-water mark. The change of the harbor line at this point, in 1907, was for the purpose of making the line coincide with the actual high-water mark and in the report of the United States engineer who advised the change it was said that the lines as previously established had "not been filled out to, and the river bed on the Brunot Island side, and in the bend referred to" was in "essentially the same condition" as at the time the harbor lines of 1895 were fixed. He added:
"Pittsburgh suffers annually from floods and in my opinion any material contraction of the channel immediately below the city would result in general injury and would produce conditions detrimental to navigation and to harborage, and it is respectfully recommended that the changes in the established harbor lines shown and described on the map inclosed herewith be made, such changes being necessary in preserving and protecting the harbor of Pittsburgh.
"The location of the proposed harbor lines recommended in this communication is within the bed of the stream as it exists as a physical fact."
Nor is the authority of Congress limited to so much of the water of the river as flows over the bed of forty years ago. The alterations produced in the course of years by the action of the water do not restrict the exercise of Federal control in the regulation of commerce. Its bed may vary and its banks may change, but the Federal power remains paramount over the stream, and this control may not be defeated by the action of the State in restricting the public right of navigation within the river's ancient lines. The public right of navigation follows the stream (Rolle's Abr. 390; Carlisle v. Graham, L.R. 4 Ex.
It is for Congress to decide what shall or shall not be deemed in judgment of law an obstruction of navigation. Pennsylvania v. Wheeling and Belmont Bridge Co., 18 How. 421. And in its regulation of commerce it may establish harbor lines or limits beyond which deposits shall not be made or structures built in the navigable waters. The principles applicable to this case have been repeatedly stated in recent decisions of this court. Gibson v. United States, 166 U.S. 269; Scranton v. Wheeler, 179 U.S. 141; C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561; West Chicago R.R. v. Chicago, 201 U.S. 506; Union Bridge Co. v. United States, 204 U.S. 364; Monongahela Bridge v. United States, 216 U.S. 177; Hannibal Bridge Co. v. United States, 221 U.S. 194.
In Gibson v. United States, supra, the construction of a dyke in the Ohio River under the authority of the Secretary of War had substantially destroyed the landing on and in front of a farm owned by Mrs. Gibson "by preventing the free egress and ingress to and from said landing" to "the main or navigable channel" of the river. The court said (pp. 271, 272, 275): "All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the title to the shore and submerged soil is in the various States and individual owners under them, it is always subject to the servitude in respect of navigation created in favor of the Federal government by the Constitution.
Again, in Scranton v. Wheeler, supra, the question arose with respect to the riparian owner whose access from his land to navigability was permanently lost by reason of the construction by the United States of a pier resting on submerged lands in front of his upland. The court said in its opinion (p. 163): "The primary use of the waters and the lands under them is for purposes of navigation, and the erection of piers in them to improve navigation for the public is entirely consistent with such use, and infringes no right of the riparian owner. Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title, a bare technical title, not at his absolute disposal, as is his upland, but to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation."
In Union Bridge Co. v. United States, supra, the Secretary of War found a bridge to be an unreasonable obstruction to the free navigation of the Allegheny River and required the Bridge Company to make certain changes which it was insisted it could not be compelled to make without compensation. The court, after reviewing the
It must be concluded, therefore, that it was competent for Congress to provide for the establishment of the harbor lines in question for the protection of the harbor of Pittsburgh. It acted within its constitutional power in authorizing the Secretary of War to fix the lines. Union Bridge Co. v. United States, supra (pp. 385-388); Monongahela Bridge v. United States, supra (p. 192). That officer did not exhaust his authority in laying the lines first established in 1895, but was entitled to change them, as he did change them in 1907, in order more fully to preserve the river from obstruction. And, in none of the acts complained of, did he exceed the power which had been conferred.
The bill failed to show any ground upon which the complainant was entitled to relief and it was properly dismissed.
"SEC. 12. That section twelve of the river and harbor act of August eleventh, eighteen hundred and eighty-eight, be amended and reenacted so as to read as follows:
"Where it is made manifest to the Secretary of War that the establishment of harbor-lines is essential to the preservation and protection of harbors, he may, and is hereby authorized, to cause such lines to be established, beyond which no piers, wharves, bulk-heads or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him; and any person who shall willfully violate the provisions of this section, or any rule or regulation made by the Secretary of War in pursuance of this section, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or imprisonment not exceeding one year, at the discretion of the court for each offense."
Sections 11, 12 and 17 of the act of March 3, 1899, (Chap. 425, 30 Stat. 1121, 1151-1153), are as follows:
"SEC. 11. That where it is made manifest to the Secretary of War that the establishment of harbor lines is essential to the preservation and protection of harbors he may, and is hereby, authorized to cause such lines to be established, beyond which no piers, wharves, bulk-heads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him: Provided, That whenever the Secretary of War grants to any person or persons permission to extend piers, wharves, bulkheads, or other works, or to make deposits in any tidal harbor or river of the United States beyond any harbor lines established under authority of the United States, he shall cause to be ascertained the amount of tide water displaced by any such structure or by any such deposits, and he shall, if he deem it necessary, require the parties to whom the permission is given to make compensation for such displacement either by excavating in some part of the harbor, including tide-water channels between high and low water mark, to such an extent as to create a basin for as much tide water as may be displaced by such structure or by such deposits, or in any other mode that may be satisfactory to him.
"SEC. 12. That every person and every corporation that shall violate any of the provisions of sections nine, ten, and eleven of this Act, or any rule or regulation made by the Secretary of War in pursuance of the provisions of the said section fourteen, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding twenty-five hundred dollars nor less than five hundred dollars, or by imprisonment (in the case of a natural person) not exceeding one year, or by both such punishments, in the discretion of the court. And further, the removal of any structures or parts of structures erected in violation of the provisions of the said sections may be enforced by the injunction of any circuit court exercising jurisdiction in any district in which such structures may exist, and proper proceedings to this end may be instituted under the direction of the Attorney-General of the United States.
"SEC. 17. That the Department of Justice shall conduct the legal proceedings necessary to enforce the foregoing provisions of sections nine to sixteen, inclusive, of this Act; and it shall be the duty of district attorneys of the United States to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of War or by any of the officials hereinafter designated, and it shall furthermore be the duty of said district attorneys to report to the Attorney-General of the United States the action taken by him against offenders so reported, and a transcript of such reports shall be transmitted to the Secretary of War by the Attorney-General; and for the better enforcement of the said provisions and to facilitate the detection and bringing to punishment of such offenders, the officers and agents of the United States in charge of river and harbor improvements, and the assistant engineers and inspectors employed under them by authority of the Secretary of War, and the United States collectors of customs and other revenue officers; shall have power and authority to swear out process and to arrest and take into custody, with or without process, any person or persons who may commit any of the acts or offenses prohibited by the aforesaid sections of this Act, or who may violate any of the provisions of the same: Provided, That no person shall be arrested without process for any offense not committed in the presence of some one of the aforesaid officials: And provided further, That whenever any arrest is made under the provisions of this Act, the persons so arrested shall be brought forthwith before a commissioner, judge, or court of the United States for examination of the offenses alleged against him; and such commissioner, judge, or court shall proceed in respect thereto as authorized by law in case of crimes against the United States."